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86-139-8 James H. Sisk Improvement of Tract 8297 on Vista Drive Reso 8123I TRACT AGREEMENT VISTA DRIVE This AGF024EvI', made and entered into this 7th day of May , 19 90 , by and between the CITY OF CUPERTMO, a municipal corporation of the State of California, hereinafter designated as CITY, and JAMES H SISK DEVELOPMENT hereinafter designated as DEVELOPER. W I TNE-SS ETH WHEREAS, said DEVELOPER desires to subdivide certain land within the City of Cupertino in accordance with the map heretofore filed with the City Council of the City of Cupertino, marked and designated as Tract 8297 Cupertino, California, hereinafter designated as the "Tract;" and WHEREAS, said map shows certain courts, drives and roads which are offered for dedication for public use; and WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Tract by JENNINGS, MCDERMOTT, HEISS, INC. , a true copy of said improvement plans and specifications are on file in the Office of the City Engineer of Cupertino; and WHEREAS, the same are incorporated herein by reference, the same as though set out in full; NOW, THEREFORE, said impn7vement plans and specifications shall I>.- hereinafter ehereinafter called the "Plans,ii and the work to be done under the Plans shall be called the "Work." Page 1 51,879 MiEREAS, pursuant to the provisions of this AGREEMERI', the CITY hereby established the amounts of Bonds, Fees, and Deposits as set forth in the following schedule: SCSI= OF BONUS, FEES AND DEPOSI'T'S PART A. Faithful Performance Bond: On Site: $112,000 Off Site:$ 35,000 One hundred forty seven thousand dollars PART B. Labor and Material Bond: On Site: $112,000 Off Site:$ 35,000 One hundred forty seven thousand dollars PART C. Checking and Inspec,•tion Fee: Seven thousand three hundred and fifty dollars PART D. Indirect City Expenses: One thousand one hundred and three dollars PART E. Map Filing Fee: One hundred twenty four dollars PART F. Develcpmant Maintenance Deposit: Three thousand dollars PART G. Storm Drainage Fee: One thousand eight hundred and three dollars PART H. One Year Power Cost: Thirty six dollars PART I. Street Trees: PART J. Park Fee: Zone III ACCT.# 480-0000-416-033 Ninety nine thousand dollars PART K. Water Main Extension Deposit: PART L. Maps and/or Improvement Plans: As Specified in Item 23 Page 2 $147,000 $147,000 $ 7,350 $ 1,103 $ 124 $ 3,000 $ 1,803 $ 36 $ 99,000 N/A NOW, TfEREFORE, IT IS HEREBY MUIUALLY AGREED by and between the parties hereto as follows, TO WIT; 1. INSTAL=ON OF WORK It is further agreed that; A. The DEVELOPER shall install and ccanplete the Work within one (1) year from the date of execution of this AGREEMENT, or such longer period as may be specifically authorized in writing by the City Engineer. In the event the DEVELOPER fails or refuses to complete the Work within the specified period of time, the CITY, at its sole option, shall be autho- rized to complete the Work in whatever manner the CITY gall decide. In the event the CITY canpletes the Work, the CITY may recover any and all costs incurred thereby from the DEVELOPER or the DEVELOPER'S surety or both. B. The DEVELOPER shall install and complete the Work in a good and workmanlike manner in accordance with the Plans as approved by the City Engineer of Cupertino. The Work shall be performed under the inspec,ti_gn and with the approval of the City Engineer. The Work shall be done in accordance with the existing ordinances and resolutions of the City of Cupertino, and in accordance with all plans, specifications, standards, sizes, lines and grades approved by the City Engineer. The Work shall be done in accordance with all State and County Statutes applicable thereto. The decision of the City Engineer shall be final as to whether any material or workmanship meets the standards, specifications, plans, sizes, lines and grades as set forth. C. It is further agreed that the Work shall be done in accordance with the most current Standard Specifications of the Department of Public Works, California Department of Transportation, State of California, and in accordance with the specifications of the Cupertino Sanitary District where applicable. Wherever the words "State" or "California Division of Highways" are mentioned in the State Specifications, it shall be considered as referring to the CITY of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as referring to the City.Engineer. In case of conflict between the State Specifications and the specifications of the CITY and/or the Cupertino Sanitary District, the specifications of the CITY and/or the Cupertino Sanitary District shall take precedence over and be used in lieu of such conflicting portions. 2. EXCAVATION PERKIT It is further agreed that the DEVELOPER shall comply with Section Three of Ordinance No. 130 of the CITY by obtaining an excavation permit frau the City Engineer before the commencement of any excavation in, on, or under the surface of any existing public street, lane, alley, sidewalk, or other public place. It is further agreed that the DEVELOPER shall notify the City Engineer of the exact date and time when the proposed excavation is to commence. Page 3 It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all his rights and interests in, and shall grant to CITY authorization to extract water from the underground strata lying beneath said project arra DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him for signature. A. Upon the execution of this AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGREEMENT. The penal stun of said faithful performance bond shall be the full cost of any payment to be made under this AGREEMENT, the value of any land agreed to be dedicated, and any improvements to be made under this AGREEMENT. In the event that improvements are to be made under this AGREEMENT, the DEVELOPER shall, in addition to said faithful performance, file with the CITY a labor and materials bond in a penal stun adequate to assure full payment of all labor and materials required to construct said improvements. The amount of said bonds shall be as designated by the City Engineer. Said bonds shall be executed by a surety company authorized to transact a surety business in the State of California and must be approved by the City Attorney as to form and by the City Engineer as to sufficiency. In the event that the DEVELOPER shall fail faithfully to perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY shall call on the surety to perform this AGREES or otherwise indemnify the CITY for the DEVELOPER'S failure to so do. B. In lieu of a surety bond, the DEVELOPER may elect to secure this AGREEMENT by depositing with the CITY: 1. Cash; or, 2. A cashier's check, or a certified check payable to the order of the City of Cupertino or, 3. A certificate of deposit, or instrument of credit meeting the requirements of 'Government Code Section 66499 (b) or (c) . C. The amount of said cash, checks, certificate of deposit, or instrument of credit shall be as designated by the City Engineer, and shall be the equivalent to that which would have been required had the DEVELOPER .furnished the CITY with a surety bond. In the event that the DEVELOPER shall fail faithfully to perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY may apply the proceeds of said security thereto. D. No release of surety bond, cash deposit, check, or certificate of deposit, shall be made except upon approval of the City Council. E. No interest shall be paid on any security deposited with the CITY. Page 4 5. C-E=G AND INSPECTION FEE It is further agreed that DEVELOPER shall pay any and all necessary direct expenses for inspection, checking, etc., incurred by CITY in connection with said Project, and that DEVELOPER shall have deposited with CITY, prior to execution of this AGFA, the amount as set forth herein at Page 2 (Part C).' Should construction cost vary materially from the estimate frau which said sum is calculated, the City Engineer shall notify DEVELOPER of any adclItimal sum due and owing as a result thereof. It is further agreed that DEVELOPER shall pay to CITY, prior to execution of this AGREE EVT, indirect expense allocable to processing these improvements, the amount as set forth herein at Page 2 (Part D). 7. MAP FILLING FEE It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution of this AGREEMENT, for office checking of final map and field checking of street mommnents, in alliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of CITY, the amount as set forth herein at Page 2 (Part E). It is further agreed that the DOPER shall pay to the qty, prior to execution of this AGlU0,I M, the amount set forth herein at Page 2 (Part F) as a developanent maintenance deposit to insure proper dust control and cleaning during the construction period. The development maintenance deposit may be utilized for repairs of defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said work during the period until release of the improvement bonds by the CITY. Should the DEVELOPER complete the required repairs to the entire satisfaction of the CITY, the unused balance will be returned after the release of the improvement bonds. It is further agreed that the DEVELOPER shall deposit with the CITY, prior to execution of this AGREEMEHr, a storm drainage charge in connection with said Project in accordance with the requirements established in Resolution 4422, March 21, 1977, in the amount as set forth herein at Page 2 (Part G) . 10. ONE YEAR POWER CCSr It is further agreed that the DEVELOPER shall pay to CITY prior to execution of this AGREE =, the amount as set forth herein at Page 2 (Part H), which amount represents the power cost for street lights for one year. 11. THE INSTALLATION OF STREET' TREES It is further agreed that the DEVELOPER shall, at such time as deemed appropriate by the City Engineer, plant street trees in conformance with the standards of the City of Cupertino. Variety of tree shall be selected from the City approved list. Page 5 12. PARK FEES It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such land to the CITY, prior to execution, as is required within "Park Dedication Ordinance" Number 602, 1972, and which is further stipulated under Part J, Page 2 herein. 12-A. PARK FEE ADJUS7I= PROVISIONS The value of the land used in establishing the "Park Fee" outlined herein on Page 2, Part J, requires formal confirmation. The CITY shall employ a qualified local appraiser to provide a market value of the land. The City will calculate the "Park Fee" based on the appraisal. The Developer agrees to pay for any deficiency within thirty (30) days and the City agrees to refund average within thirty (30) days. Adjustments shall be made prior to acceptance of the subdivision improvements. 13. MADTIE[WCE OF WORK It is further agreed that the DEVELOPER shall maintain the Work: A. For a period of one (1) year after acceptance of the Work by the City Council of the City of Cupertino, or B. Until all deficiencies in the Work are corrected to conform to the Plans and the CITY standards and specifications for the Work, whichever is the later to occur. The DEVELOPER shall, upon written notice thereof, immediately repair or replace, without cost or obligation to the City of Cupertino, and to the entire satisfaction of said CITY, all defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said Work. 14. --_ _SANITARY DISTRICT It is further agreed that the DEVELOPER shall file with CITY, upon execution of this AGREU=, a letter fram the Cupertino Sanitary District stating that the DEVELOPER has entered into a separate AGREEV'I' with the said District to install sanitary sewers to serve all lots within said Project and stating that a bond to insure full and faithful performance of the construction of the said sanitary sewers and to insure maintenance of said sanitary sewer in conformance with the provisions as set forth in Paragraph 13 above has been filed. It is further agreed that DEVELOPER shall file with CITY, upon execution of this Ate, substantial evidence that all provisions of Section 11603, Article 8, Chapter 4 of the Business and Professions Code, Pertaining to special assessments or bonds, have been complied with. 16. CEN RU FIRE DISTRICT It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGRZD=, a letter from the Central Fire Protection District of Santa Clara County, stating that the DEVELOPER has entered into an A MREEMM with said District to install fire hydrants to serve said Project and stating that all necessary fees have been deposited with said District to insure installation and five (5) year rental fee of said hydrants. Page 6 17. STREET LIGHTING - P.G.and E. RATE SCHEDULE SHALL APPLY It is further agreed that the DEVELOPER shall apply for the installation of electric power for street lighting at the earliest date possible. 18. PACIFIC GAS AND ELECTRIC/PACIFIC HELL It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric Ccnpany and/or to PACIFIC BELT any and all fees required for installation of overhead and/or underground wiring circuits to all electroliers within said property and any and all fees required for undergrOunding as provided in Ordinance No. 331 of CITY when DEVELOPER is notified by either the City Engineer or the Pacific Gas and Electric Company and/or PACIFIC HELL that said fees are due and payable. 19. EASEMEEII'S AND RICE iri -OF-i M It is further agreed that any easement and right-of-way necessary for completion of the Project shall be acquired by the DEVELOPER at his own cost and expense. It is provided, however, that in the event eminent domain proceedings are required by the CITY for the purpose of securing said easement and right-of-way, that the DEVELOPER shall deposit with CITY a stun covering the reasonable market value of the land proposed to be taken and to be included in said stun shall be a reasonable allowance for severance damages, if any. It is further provided that in addition thereto, such sums as may be required for legal fees and costs, engineering, and other incidental costs in such reasonable amounts as the CITY may require shall be deposited with the City of Cupertino. It is further agreed that, commencing with the performance of the Work by the DEVELOPER or his contractor and continuing until the completion of the maintenance of the Work as provided in Paragraph 13 above, the DEVELOPER shall indemnify, hold harmless and defend the CITY from and against any or all loss, cost, expense, damage or liability, or claim thereof, occasioned by or in any way whatsoever arising out of the performance or nonperformance of the Work or the negligence or willful misconduct of the DEVELOPER or the DEVELOPER'S agents, employees and independent contractors. 21. INSURANCE It is further agreed that: The DEVELOPER shall take out, or shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of insurance naming the CITY and members of the City Council of the City of Cupertino, individually and collectively, and the officers, agents and employees of the City individually and collectively, as insured. Said separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf of said DEVELOPER. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full Page 7 limit of liability stated in the declarations, and if the City, its ffE bers of the City Council individually and collectively, and the officers, agents, and employees of the CITY, individually and collectively, have other insurance against the loss covered by said policy or policies, that other insurance shall be excess insurance only. A. Each of said policies of insurance shall provide coverage in the following minimum amounts: For bodily injury, $100,000 each person; $300,000 each occurrence, property damage, $50,000 on aunt of any one occurrence with an aggregate limit of not less than $200,000. B. The DEVELOPER shall file with the City Engineer at or prior to the time of execution of this AGREDUM by the DEVELOPER such evidence of said foregoing policy or policies of insurance as shall be satisfactory to said City Engineer. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the City Engineer at least ten (10) days advance notice thereof. C. In the event that the project covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipality or political subdivision of the State of California, the policies of insurance required herein and above shall co -name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY shall equally apply to municipality and political subdivision. The DEVELOPER further agrees to deposit with the CITY those monies required to comply with "Policy on Water Main Extensions Work and Deposits" dated September 9, 1977. The deposit shall be held by the CITY until said monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within an adopted Water Master Plan. The amount shown herein at PART K, Page 2 shall be the full amount due. 23. MAP AND/CR PLANS It is further agreed that the CITY shall obtain the following map and/or plans at the DEVELOPER'S expense: A. A mylar sepia and thirteen (13) prints of fully executed tract map. B. A mylar sepia and ten (10) prints of fully executed improvement plans. C. A direct duplicating silver negative microfilm aperature card of all executed improvement plans and map. The DEVELOPER agrees to pay the CITY from the development maintenance deposit the cost for all prints of plans and map required under Item 23. •- - 24. TERLS AND CONDITIONS It is further agreed that the above named terms and conditions for the said Tract shall bind the heirs, successors, administrators or assigns of the DEVEwPER. The assignment of this AGRM�UW shall not be made without approval by the City Council of said CITY. IN WITNESS SOF, CITY has caused its name to be hereunto affixed by its Mayor and City Clerk, thereunto duly authorized by resolution of the City Council and said DEVEIAPER has hereunto caused his name to be affixed the day and year first above written. Approved as to form: l City Attorney Staled California SS. coln,ty of Santa Clara OFFICIAL SEAL 51 HELEN K. YATES m� NOTARY PUBLIC • CALIFORNIA SANTA CLARA COUNTY My Commission Expires May 10, 1991 c�c�G���ct�cc�cc�cts�c.�ccuc� 1;1 NF nnl. A, KNpMFOGMENI FpnM 1110052 �Mw • K waa;•r+l► • 11110021001rim Onthlsthe 30thdayol April „1990,befoieme Helen K. Yates the undersigned Notary Public, personally appeared James H. Sisk ,K personally known to me FJ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) i s subscribed to the within Instrument, and acknowledged that h e executed it. WITNESS my hand and official seal otary'iSignature RESOLUTION NO. 8123 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT' NO. 8297 LOCATED ON VISTA DRIVE, DEVELOPER JAMES H. SISK, ACCEPTING CERTAIN EASEMENT'S; AUTHORIZING SIGNING OF FINAL MAP AND IMPROVEMENT PLANS; AUTHORIZING THE EXECUTION OF AGREE = IN CONNECTION THEREWITH WHEREAS, there has been presented to the City Council for approval and for authorization to record final map of Tract No. 8297 located on Vista Drive showing certain avenues, drives, places, and roads by James H. Sisk; and WHEREAS, there has been presented to the City Council a proposed agreement for the construction of streets, curbs, and gutters, and for other improvements, and good and sufficient bonds, fees, and deposits as set forth in Exhibit "A" having been presented for the faithful performance of said work and the carrying; out of said agreement; and said map, agreement, and bonds having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED THAT: a. Said final map and improvement plans of Tract No. 8297, be and the same is hereby approved. b. The offer of dedication for roadway and for easements is hereby accepted. C. The City Engineer and the City Clerk are hereby authorized to sign said final map. d. The City Engineer is hereby authorized to sign the improvement plan. e. The Mayor and the City Clerk are hereby authorized to execute the agreement herein referred to. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7th day of May , 1990, by the following vote: Vote Members of the City Council AYES: Goldman, Sorensen, Szabo, Rogers NOES: None ABSENT: Koppel ABSTAIN: None ATTEST: /s/ Roberta A. Wolfe /s/ Barbara A. Rogers City Clerk, Deputy Mayor, City of Cupertino